398 F.

3d 126

Felix MATEO, Petitioner, Appellee,

v.
UNITED STATES of America, Respondent, Appellant.
United States of America, Appellant,
v.
Felix Mateo, a/k/a Johnny, a/k/a Charlie, a/k/a Manuel
Lluberes, Defendant, Appellee.
No. 03-2409.
No. 03-2472.

United States Court of Appeals, First Circuit.

Heard October 5, 2004.
Decided February 18, 2005.

James M. Fox for petitioner.

Dina Michael Chaitowitz, Assistant U.S. Attorney, with whom Michael J.
Sullivan, United States Attorney, was on brief, for respondent.
Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge,
and LIPEZ, Circuit Judge.
LEVIN H. CAMPBELL, Senior Circuit Judge.

This is an appeal by the United States from the district court's granting of relief
to Felix Mateo1 pursuant to 28 U.S.C. 2255. At issue is Mateo's right to
obtain a reduced federal sentence following state court orders undermining a
state conviction and sentence that had been used to enhance his original federal
sentence.

On August 25, 2000, Mateo was sentenced in the United States District Court
for the District of Massachusetts on drug-related charges. In calculating the
criminal history component of the Sentencing Guidelines, the district court
counted three criminal history points. The multiplicity of criminal history points

resulted from evidence that Mateo had committed the federal offenses while
subject to an outstanding state warrant for violation of a probationary sentence
imposed for conviction of a Massachusetts narcotics offense.2 Five months after
the original federal sentence, Mateo obtained an order from a state court judge
terminating the state probationary sentence nunc pro tunc to a date prior to the
time he had committed the federal offenses of conviction. Armed with the state
nunc pro tunc order, Mateo then successfully petitioned the federal district
court under 28 U.S.C. 2255 for a reduction in the federal sentence it had
earlier imposed. Additionally and before the court below had reduced its
earlier sentence Mateo further obtained from the state court an order
vacating the guilty plea that had been the foundation of the state conviction and
probationary sentence used to enhance his federal sentence. Finding Mateo's
original guilty plea to have been premised on a constitutionally insufficient
colloquy, the state court vacated his guilty plea, ordered a new trial, and filed
the charges against Mateo.
3

The United States now appeals from the district court's reduced sentence
calculated on zero rather than three criminal history points. The district court's
principal rationale for its reduction and the principal subject of the parties'
arguments on appeal was the state court's nunc pro tunc termination of
Mateo's state term of probation, a termination which, the district court believed,
deprived the state sentence of its ability to enhance the federal sentence under
the Sentencing Guidelines.

This is the third time the parties have appealed to this Court in respect to the
sentences in the federal drug case in question. See United States v. Mateo, 271
F.3d 11 (1st Cir.2001) (Mateo I); Mateo v. United States, 310 F.3d 39 (1st
Cir.2002) (Mateo II). After consideration of the district court's and our prior
decisions as well as the state court decisions and other circumstances of this
case, we affirm the district court's reduction of its original sentence. In so
doing, however, we do not follow the district court's rationale premised on the
state court's nunc pro tunc termination of the term of probation but rather rely
on the state court's vacation and filing of the state conviction. See United States
v. Johnson, 952 F.2d 565, 584 (1st Cir.1991) (considering applicability of
Sentencing Guidelines provisions not specifically considered by the district
court); Doe v. Anrig, 728 F.2d 30, 32 (1st Cir.1984) (court of appeals free to
affirm based on any ground supported by the record).

I. Background
5

On April 11, 1995, Mateo appeared in West Roxbury District Court, a

Massachusetts state court. The court accepted his plea of admission to sufficient

facts and entered a finding of guilty on a charge of distributing heroin.3 The

state court imposed a suspended sentence, placing Mateo on probation for two
years, a period that would ordinarily have ended on April 11, 1997 had Mateo
complied with the terms of his probation.
6

According to the West Roxbury probation office, Mateo failed after April 3,
1996 to report to probation authorities as required by the terms of the probation.
On April 9, 1997, two days before the April 11th end of his probationary
period, the probation office sent Mateo a notice, instructing him to report for a
compliance hearing. Mateo failed to report for the hearing. On July 14, 1997,
the probation office sent Mateo another notice, informing him that he had
violated the terms of his probation and instructing him to appear for a surrender
hearing on September 9, 1997. Mateo did not appear at the surrender hearing,
and the state court thereupon, on the same date, issued a default warrant for his
arrest. The warrant remained outstanding until at least January 5, 1999 at which
time Mateo was arrested on federal charges and placed in custody.

On January 27, 2000, Mateo pled guilty in federal district court to the various
federal drug-related offenses, including conspiracy to possess cocaine base with
intent to distribute, in violation of 21 U.S.C. 846, and distribution of cocaine
base, in violation of 21 U.S.C. 841(a)(1). Mateo's role in the conspiracy
commenced in March of 1998 and continued to about January 5, 1999. The
distribution offenses occurred on or about March 27, 1998 and on or about
January 5, 1999. Mateo's base offense level was 34. He received a three-level
credit for acceptance of responsibility. See USSG 3E1.1. Because of the
quantity of drugs involved, Mateo was subject to a ten-year minimum
mandatory sentence. See 21 U.S.C. 841(b)(1)(A)(iii).

On August 25, 2000, the district court sentenced Mateo to 121 months in
prison. In calculating the criminal history component of the Sentencing
Guidelines, the district court added one criminal history point for the
Massachusetts drug conviction and two additional points based on its finding
that Mateo had committed the federal drug offenses while under a criminal
justice sentence for that conviction. See USSG 4A1.1(d). Under the relevant
guideline, the addition of two points was mandatory if the offense was
committed under "any criminal justice sentence, including probation." Id. A
defendant who commits a federal offense "while a violation warrant from a
prior [probation] sentence is outstanding ... shall be deemed to be under a
criminal justice sentence if that sentence is otherwise countable, even if that
sentence would have expired absent such warrant." Id. 4A1.2(m); see also id.
4A1.1(d), cmt. n. 4.

The court's finding that the crimes were committed while Mateo was under a
criminal justice sentence not only moved Mateo into a higher criminal history
category but rendered him ineligible for the "safety valve" provision, USSG
5C1.2. Mateo had unsuccessfully argued that he should be in a lesser criminal
history category and eligible for the "safety valve" on the ground that the
probationary sentence stemming from his prior state court conviction was
invalid because the warrant had been illegally issued after the termination date
of the probationary period. The district court, in its original sentencing, rejected
this reasoning, used the higher criminal history category to fix the guideline
sentencing range (121-151 months), and imposed a sentence at the low end of
the range. The district court advised Mateo that his sentence was "all without
prejudice to [him] getting [his probation violation] warrant vacated in state
court."

10

On September 5, 2000, Mateo filed a notice of appeal to this Court from his
foregoing federal sentence. On October 12, 2000, while his appeal here was
pending, Mateo filed a motion in state court to vacate his guilty plea in the
West Roxbury District Court, arguing, inter alia, that the plea was invalid
because the court "accepted his plea without inquiring whether the plea was
made intelligently, with full knowledge and understanding of all the elements
of the charge against him." Mateo argued that the judge and his attorney never
explained the elements of the charge. He asserted that "[he] believed [he] was
pleading to simple possession, not possession with intent to distribute."

11

On December 13, 2000, counsel for Mateo wrote to a probation officer at the
West Roxbury District Court:

12

I recently represented [Mateo] in a drug prosecution brought in United States

District Court. He was sentenced to 121 months in prison. If the defendant's
probation in the above referenced case had been terminated prior to the date of
his federal offense, March 27, 1998, he would have received a sentence of 87
months. The judge who sentenced [Mateo] told me that if I could obtain an
order from the West Roxbury Court indicating that probation should have
terminated prior to March 27, 1998, the judge will resentence [Mateo] to 87
months. Regardless whether the defendant serves 87 or 121 months he will be
deported upon wrapping his federal sentence.4

13

The following day, Mateo filed a motion in state court to terminate his
probation nunc pro tunc to April 11, 1997. The argument section of Mateo's
motion stated in its entirety:

Argument:
14

The defendant contends that his probation terminated on April 11, 1997. The
probation office did not initiate process to surrender the defendant until July 14,
1997. The defendant had completed probation and the warrant was issued in
error. Commonwealth v. Mitchell, 46 Mass.App.Ct. 921, 922, 708 N.E.2d 961
(1999).

15

In granting the motion, the state judge marked on the face of Mateo's motion
papers: "After hearing, the motion is allowed. [Defendant] is found in violation
of probation. Probation is terminated nunc pro tunc to April 11, 1997."

16

On appeal in this Court (Mateo I), Mateo argued that the state court's nunc pro
tunc order meant that he was not on probation when he committed the offenses
of conviction, and therefore, he should be resentenced. This Court rejected his
argument for two reasons. First, the Court was procedurally barred from
addressing the nunc pro tunc order because, as the order was issued after the
district court imposed its sentence, Mateo "introduced [the matter] for the first
time in the court of appeals." Mateo I, 271 F.3d at 15. Second, "even were [the
Court] to consider the nunc pro tunc order, [Mateo] would not be advantaged,"
because a defendant's criminal history category "is to be calculated at the time
of sentencing, and nothing in the sentencing guidelines suggests that it should
be modified, after sentence has been pronounced, because of a subsequent
action taken by a state court." Id. (citation omitted).

17

Mateo then filed a timely petition under 28 U.S.C. 2255, raising the same
argument denied on direct appeal. The district court denied the petition on the
ground that this Court had rejected his argument in Mateo I. Subsequently,
Mateo sought a certificate of appealability, which the district court denied.

18

Mateo then asked this Court for a certificate of appealability, which our Court
granted on November 7, 2002. Mateo II, 310 F.3d at 42. This Court explained
that it had rejected Mateo's direct appeal because it was based on material that
had not been presented to the district court. Id. at 40. We also minimized our
comment in Mateo I about the irrelevance of the nunc pro tunc order:

19

[T]he main holding in Mateo I does not apply because the state court order now
is part of the record. As for the further comment quoted above that Mateo
would not be advantaged even had we considered the nunc pro tunc order
we think this meant only that the district court had not erred as the record
before it stood; the court in Mateo I should not be taken to have decided in a

brief comment a very difficult set of substantive issues concerning the

consequence of a post-sentencing vacation of a state sentence that affected the
federal sentence.
20

Id. We vacated the dismissal of Mateo's 2255 petition and remanded the case
to the district court. Id. at 42-43.

21

Shortly thereafter, on January 2, 2003, the state court granted "for the reasons
stated" Mateo's motion to vacate his guilty plea in the prior state case,
effectively vacating Mateo's conviction and expressly ordering a new trial. (As
already indicated, Mateo's motion to vacate his guilty plea was based on the
alleged insufficiency of the in-court colloquy prior to acceptance of the plea.)
On April 24, 2003, the court ordered the state charges to be filed without
change of plea.

22

Back in federal court, on remand, the district court held a hearing on the 2255
motion on March 19, 2003. During the hearing and in their briefs, neither party
mentioned the state court's allowance of Mateo's motion to vacate plea. 5 On
August 12, 2003, the district court allowed Mateo's 2255 petition, basing its
analysis upon the state court's order terminating Mateo's probation nunc pro
tunc to April 11, 1997. See Mateo v. United States, 276 F.Supp.2d 186
(D.Mass.2003) (Mateo III). The district court reasoned that a federal sentence
enhanced under the Guidelines based on a defendant's state record can be
collaterally challenged pursuant to 28 U.S.C. 2255 when a state court
subsequently modifies or invalidates the aspect of the state record that resulted
in an enhanced federal sentence. Id. at 190-91. The court explained that, absent
exceptional circumstances, a federal court should not look beyond the statecourt record, and, therefore, it would not inquire into the correctness of the state
order terminating Mateo's probation nunc pro tunc to a time prior to the federal
offenses. Id. at 193-94.

23

On September 30, 2003, the district court held a new sentencing hearing. By
the time of this hearing, the state court's vacation of Mateo's guilty plea seems
to have become generally known. The presentence report noted that Mateo was
being resentenced "as a result of his prior [state] conviction being vacated."
The district court calculated Mateo's criminal history points (without the prior
state conviction or probationary sentence) to be zero, making him eligible for
the safety valve reduction. See USSG 5C1.2(a)(1). The court found Mateo's
adjusted offense level (with the safety valve reduction) to be 29, his criminal
history category to be I, and his guideline sentencing range to be 87 to 108
months. The court sentenced Mateo to 96 months in prison, reducing his
original sentence by 25 months. The United States appealed.

II. Analysis
24

The federal Guidelines state that a district court should "[a]dd 2 points if the
defendant committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work
release, or escape status." USSG 4A1.1(d). And the Guidelines go on to state
that "a defendant who commits the instant offense while a violation warrant
from a prior sentence is outstanding (e.g., a probation, parole, or supervised
release violation warrant) shall be deemed to be under a criminal justice
sentence if that sentence is otherwise countable, even if that sentence would
have expired absent such warrant." Id. 4A1.2(m). Here, the federal offenses
were all committed between the time a state default warrant for the prior
violation of probation had been issued and was outstanding, and the time Mateo
was returned to custody on the federal charges on January 5, 1999.

25

Whether Mateo was "under a criminal justice sentence" for purposes of the
Sentencing Guidelines is ultimately a question of federal law. See United States
v. Carrasco-Mateo, 389 F.3d 239, 246 (1st Cir.2004); United States v.
Martinez-Cortez, 354 F.3d 830, 832 (8th Cir.2004); Mateo I, 271 F.3d at 15;
United States v. Camilo, 71 F.3d 984, 987 (1st Cir.1995). In Mateo I, this court
stated that "in determining whether to add criminal history points under USSG
4A1.1(d), a sentencing court ordinarily is not required to look beyond the face
of the state-court record, but, rather, may give weight to an outstanding warrant
without inquiring into the validity of that warrant." 271 F.3d at 16. The
Guidelines are clear that the sentencing court should add two criminal history
points if the defendant has an outstanding violation warrant at the time he
commits a federal offense, even if the underlying sentence would have expired
but for the violation. See USSG 4A1.1(d), 4A1.2(m); see also Camilo, 71
F.3d at 986; USSG 4A1.1(d), cmt. n. 4. The Guidelines do not indicate that
the violation warrant must affirmatively be proven valid. See, e.g., United
States v. Davis, 313 F.3d 1300, 1306 (11th Cir.2002), cert. denied, 540 U.S.
827, 124 S.Ct. 49, 157 L.Ed.2d 50 (2003) ("[I]t is not necessary to prove the
validity of the underlying warrant before applying 4A1.1(d)."); United States
v. Anderson, 184 F.3d 479, 481 (5th Cir.1999) ("In determining whether an
outstanding violation warrant triggers a two-point increase, the Guidelines do
not require us to assess the state authorities' diligence in executing a violation
warrant."); United States v. Elmore, 108 F.3d 23, 27 (3d Cir.1997) ("The plain
language of the Guidelines indicates that two points are to be added whenever
an outstanding warrant is in existence, regardless of whether the warrant is stale
pursuant to state law at the time of sentencing, and irrespective of whether state
authorities have been lax in attempting to execute the warrant.").

26

At the time of the original sentencing, therefore, the district court could
scarcely have calculated Mateo's criminal history differently than it did. Mateo's
probationary sentence for the Massachusetts drug conviction was unquestioned
and a state probation violation warrant had been outstanding when Mateo
committed the federal offenses. The district court was not required, nor
ordinarily permitted, to look beyond the face of the state-court record nor to
inquire as to the validity of the state warrant. Mateo I, 271 F.3d at 16. The
district court concluded quite properly, therefore, at the initial federal
sentencing, that Mateo was "under a criminal justice sentence" when he
committed the federal offenses of conviction. See USSG 4A1.2(m).

27

The current appeal, however, is from the district court's subsequent granting of
2255 relief vacating that earlier sentence and reducing to zero Mateo's
criminal history points. This was done largely in response to the subsequent
state court order expressly terminating Mateo's probation nunc pro tunc to April
11, 1997, a time prior to his federal offenses of conviction. Also, by the time of
the habeas action in the district court, Mateo's guilty plea in the relevant state
case had been vacated and the state case had itself been placed on file. We turn
now to these subsequent state actions.
A. The Relevant State Orders

28

In reviewing the district court's elimination of the three points based upon the
state drug conviction (one point) and the fact that Mateo had committed the
federal offenses while under a criminal justice sentence (two points), we need
first to sort out the relevance to the federal sentence of the two different state
actions: (1) the state court order allowing Mateo's motion to terminate nunc pro
tunc his probation to April 11, 1997; and (2) the state court order allowing
Mateo's separate motion to vacate his guilty plea to the state charge and for a
new trial, followed by the filing of his case. The latter state court action was
noted in the most recent presentence report, which treated Mateo as being now
without any prior state conviction. This fact was the basis of the district court's
elimination of the one point added because of the prior state sentence. See
USSG 4A1.1(c). The district court eliminated the other two points
awarded for commission of the instant federal offense while under a criminal
justice sentence, id. 4A1.1(d) because of the nunc pro tunc termination of
probation to April 11, 1997.

29

Whether or not eliminating the two criminal history points solely because of the
state court's nunc pro tunc order was a correct interpretation of the Guidelines,
eliminating those points was certainly justified by the state court's vacation of

the prior state conviction. The Guidelines make it clear that "[s]entences for
expunged convictions," USSG 4A1.2(j), and "[s]entences resulting from
convictions that (A) have been reversed or vacated because of errors of law ...
or (B) have been ruled constitutionally invalid in a prior case are not to be
counted [for enhancement purposes]." Id. 4A1.2, cmt. n. 6. Accordingly,
while we affirm the district court's resentencing of Mateo so as to eliminate all
three criminal history points, we do so because of the vacation of the state
conviction rather than because of the state court's allowance of the motion to
terminate probation nunc pro tunc. See Johnson, 952 F.2d at 584; Anrig, 728
F.2d at 32. Vacation of the state conviction was an event which, under the
Guidelines, called for the reduction, and we think the district court therefore
acted properly in imposing the sentence it did.
30

B. The Effect of the State Court's Vacation of Mateo's Criminal Conviction

31

As stated above, we focus on the vacation of Mateo's state criminal conviction

as supportive of the district court's allowance of 2255 relief. The state court
allowed Mateo's motion to vacate his guilty plea on January 2, 2003. It did so
for reasons Mateo had stated in support of his motion, to wit, inter alia, that the
court had "accepted his plea without inquiring whether the plea was made
intelligently, with full knowledge and understanding of all the elements of the
charge against him."

32

In a not dissimilar situation, where a state court subsequently vacated

convictions used to enhance a federal sentence because of the lack of
information necessary for defendant's pleas to be considered voluntary, we
affirmed a district court judgment granting 2255 relief. See United States v.
Pettiford, 101 F.3d 199 (1st Cir.1996) (Aldrich, J.). 6 While that case involved
the use of prior convictions to enhance a sentence under the Armed Career
Criminal Act, the underlying principle was the same as here.7 As noted above,
the Guidelines themselves make specific provision for not counting prior
sentences resulting from expunged convictions or from convictions reversed or
vacated for errors of law or because constitutionally invalid. See USSG
4A1.2(j), 4A1.2, cmt. n. 6. As discussed in Pettiford, the ground for vacating
Mateo's guilty plea and granting him a new trial, thus vacating his conviction,
appears to have been a constitutional one. See Pettiford, 101 F.3d at 202
(characterizing the provision of "the information necessary for [a defendant's]
pleas to be considered voluntary" as "a constitutional requirement") (citing
Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969); United States v. Houlihan, 92 F.3d 1271, 1279 (1st Cir.1996)). It was
also, of course, an error of law. Following Pettiford, therefore, relief under
2255 was warranted.8

33

As in Pettiford, it is immaterial that the relief sought, based on the subsequent

state court orders, came after Mateo's original and, when pronounced, perfectly
correct, federal sentence. See Pettiford, 101 F.3d at 201 (rejecting the argument
that "only past offenses vacated prior to the federal proceeding may be
discounted by the court, in effect etching the defendant's criminal history record
in stone as of that moment").

34

It is true that, unlike in Pettiford, two of the three additional points here rested
not simply on the fact of the prior conviction itself but, more specifically, on
Mateo's having committed federal offenses "while under any criminal justice
sentence." See USSG 4A1.1(d). That requirement was met here because of
explicit further Guideline language making commission of an offense while a
violation warrant is outstanding tantamount to commission of the offense while
under a criminal justice sentence. See id. 4A1.2(m). To be sure, a policy
argument can be made that later vacation of the underlying conviction is
irrelevant, as the federal offenses were indeed committed while a warrant was
outstanding. But any such theory runs counter to limiting language in the
Guidelines. The Guidelines deem a defendant to be under a criminal justice
sentence if he commits a federal offense "while a violation warrant from a prior
sentence is outstanding," but only "if that sentence is otherwise countable." Id.
(emphasis added).

35

Here, no aspect of Mateo's probation sentence can any longer be considered to

have been "otherwise countable," since sentences for expunged convictions, or
sentences resulting from convictions vacated because of errors of law or ruled
constitutionally invalid, are expressly not to be counted for enhancement
purposes. Id. 4A1.2(j), 4A1.2, cmt. n. 6. See United States v. Dubovsky, 279
F.3d 5, 8 (1st Cir.2002) (expungement determined "by considering whether the
conviction was set aside because of innocence or errors of law"). In contrast,
the Guidelines provide that sentences resulting from convictions that have been
set aside "for reasons unrelated to innocence or errors of law" should be
counted, noting that:

36

A number of jurisdictions have various procedures pursuant to which previous

conviction may be set aside or the defendant may be pardoned for reasons
unrelated to innocence or errors of law, e.g., in order to restore civil rights or to
remove the stigma associated with a criminal conviction. Sentences resulting
from such convictions are to be counted.

37

Id. 4A1.2, cmt. n. 10.

38

The warrant here rested on Mateo's violation of his sentence of probation. Once

38

The warrant here rested on Mateo's violation of his sentence of probation. Once
the conviction was vacated for constitutional or legal error, the sentence of
probation ceased to be countable as a criminal justice sentence. It follows from
the Guidelines' express language that the violation warrant itself could no
longer be deemed to have been under a criminal justice sentence.9

39

The government argues that, even if there was an error under the Guidelines,
that error is not cognizable under 28 U.S.C. 2255. Section 2255, which
governs federal habeas, provides as follows:

40

A prisoner in custody under sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or
correct the sentence.

41

28 U.S.C. 2255. To be cognizable under 2255, a non-constitutional claim of

a legal error must amount to a "fundamental defect which inherently results in a
complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 82
S.Ct. 468, 7 L.Ed.2d 417 (1962). See also Knight v. United States, 37 F.3d 769,
773-74 (1st Cir.1994) (leaving open the question whether "an error in the
application of the sentencing guidelines could never constitute a `complete
miscarriage of justice'").

42

Here, the government contends that Mateo's non-constitutional claim, namely, a

misapplication of the Guidelines, does not result in a "miscarriage of justice"
because any error resulted from Mateo's own failure to comply with the terms
of his state probationary sentence. See Jamison v. United States, 244 F.3d 44,
48 (1st Cir.2001) (counting prior conviction was "not even remotely an
injustice" where prior conviction was dismissed only because, "instead of
returning for sentencing [after pleading guilty], as he had been ordered to do,
[the defendant] fled and thereby initiated a series of delays in his sentencing,"
which eventually resulted in the dismissal of the indictment).

43

But because we find that the error was based, not on the state court's nunc pro
tunc termination of Mateo's probation but, rather, on the vacation of the state
conviction, we examine the latter state ruling to determine whether the error is
cognizable under 2255. Unlike the state court nunc pro tunc order which had
no stated basis, the state order vacating Mateo's guilty plea and ordering a new
trial rested upon the violation of Mateo's right to have entered a voluntary and

knowing plea. We have described such a violation as one of constitutional

dimension and, in any event, as a claim cognizable under 2255 on the basis of
which a district court may properly reopen a federal sentence. See Pettiford,
101 F.3d at 201 ("[W]hether on constitutional or grounds otherwise subject to
collateral attack, we concur with the district court's recognition of federal
habeas jurisdiction.").
C. The State Court Nunc Pro Tunc Order
44

As the district court's allowance of the 2255 motion was consistent with the
state's vacation of the state conviction, we find no need to examine the effect of
the separate state court order terminating Mateo's probation nunc pro tunc to
April 11, 1997. The district court thought it improper to inquire into the legal
validity under state law of the nunc pro tunc order. See Mateo III, 276
F.Supp.2d at 194 (explaining that "absent exceptional circumstances (like a
state-court legerdemain with no colorable legal or factual rationale) not present
here, this Court will not second-guess a state court's judgment on state criminal
law"). However, for purposes of Guidelines analysis, a federal court may and
sometimes must, in appropriate circumstances, identify the reason for the state
action in order to determine whether a prior sentence should be counted. See
Carrasco-Mateo, 389 F.3d at 246 (stating that "courts have delved into state
law to resolve questions arising in the section 4A1.1(d) context"). As discussed
above, the Guidelines direct courts not to count "[s]entences for expunged
convictions," USSG 4A1.2(j), and "[s]entences resulting from convictions
that (A) have been reversed or vacated because of errors of law ... or (B) have
been ruled constitutionally invalid in a prior case," id. 4A1.2, cmt. n. 6. In
contrast, the Guidelines provide that convictions that have been set aside "for
reasons unrelated to innocence or errors of law" should be counted. Id. 4A1.2,
cmt. n. 10.

45

Here, the reason behind the state court order terminating Mateo's probation
nunc pro tunc to April 11, 1997 is unstated and unclear. While Mateo argued in
his motion to terminate probation that, at the time the probation officer initiated
process to surrender him, he had completed probation and the warrant was
issued in error, the state court made no finding to this effect and, in particular,
made no reference to the status of the warrant under its ruling. Compare
Commonwealth v. Sawicki, 369 Mass. 377, 339 N.E.2d 740 (1975);
Commonwealth v. Mitchell, 46 Mass.App.Ct. 921, 708 N.E.2d 961 (1999). A
divided panel of the Eighth Circuit has held that the defendant's successful
motion in state court to reduce a probation term from 365 to 364 days "for the
express purpose of avoiding a criminal history point in his federal drug
sentencing" was not a valid basis for not counting his original sentences for

criminal history purposes. United States v. Martinez-Cortez, 354 F.3d 830, 83132 (8th Cir.2004). In the present case, Mateo's counsel appears to have written
a letter to the state probation officer, indicating that Mateo would be
resentenced to a more lenient federal sentence if his probation was terminated
to a time prior to the federal offenses of conviction. The relevance of this letter
to the effect of the nunc pro tunc order, and the sufficiency of the provisions of
the nunc pro tunc order themselves as a basis for reduction of the federal
Guidelines sentence, give rise to delicate issues we need not address here given
the fact that the state court's vacation order amply justifies the district court's
judgment. Moreover, it may well be inappropriate for us to take into account
the letter to the state probation officer, as the letter was not presented to the
district judge. See supra note 4. Hence we do not determine the correctness of
the district court's allowance of the 2255 motion premised on the state court's
nunc pro tunc termination of the term of probation.
III. Conclusion
46

We hold that the state court's vacation and filing of the prior state conviction on
the ground stated rendered Mateo's federal sentence subject to correction under
2255 insofar as it was enhanced by the state conviction.

47

Affirmed.

Notes:
1

The defendant's true name is Johnny Rodriguez, but we will refer to him as
"Mateo," the name under which this case has proceeded in the past

The sentencing court calculated the guideline sentencing range using the
Guidelines in effect at the time of sentencing the United States Sentencing
Guidelines Manual ("USSG") issued on November 1, 1999See USSG
1B1.11(a) (courts are to use "the Guidelines Manual in effect on the date that
the defendant is sentenced"). Mateo received one criminal history point for the
prior crime pursuant to USSG 4A1.1(c), and two additional points pursuant to
USSG 4A1.1(d) and 4A1.2(m).

Mass. R.Crim. P. 12(a)(2) provides that "[i]n a District Court, a defendant may,
after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty."
Under Massachusetts law, an admission to sufficient facts to warrant a finding
of guilty is treated as a plea of guiltyUnited States v. Morillo, 178 F.3d 18, 21
(1st Cir.1999); United States v. Hines, 802 F.Supp. 559, 563 (D.Mass.1992);

Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664, 667 n. 6 (1995); Mass.
Gen. Laws ch. 278, 18. For ease of reference, Mateo's plea in state court is
referred to throughout this opinion as a plea of guilty.
4

This letter does not appear to have been called to the attention of the federal
district court during the hearing on Mateo's 2255 petition. The government
has tendered on appeal a certified copy taken from the records in the state-court
case. We need not decide if this letter may or should now be considered by us
on appealSee infra. Compare E.I. Du Pont de Nemours & Co. v. Cullen, 791
F.2d 5, 7 (1st Cir.1986) (court of appeals took judicial notice of complaint filed
in state court action), with Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co.,
682 F.2d 12, 22, n. 8 (1st Cir.1982) (court of appeals "may not ordinarily
consider factual material not presented to the court below").

Mateo was represented in the federal proceeding by an attorney different from

his state court attorney, and the United States, of course, was represented by the
United States Attorney rather than by the state prosecutor. This may account
for the apparent absence of knowledge by 2255 counsel of the January 2
vacation of the state conviction. At the end of the hearing on the 2255
motion, the attorney for the United States stated, "The problem was it was not
vacating a conviction." On April 11, 2003, the government filed its
memorandum in opposition to the 2255 petition. The government attached
state court records to its opposition. Those records appear not to have been up
to date as they did not include any notation of the filing or allowance of the
motion to vacate plea

Pettiford supported its conclusion with the Supreme Court's dicta in Custis v.
United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). The
Custis Court held that a defendant in a federal sentencing proceeding has no
right to make a collateral attack on a prior state conviction used to enhance his
sentence under the Armed Career Criminal Act, unless the prior state
conviction was obtained in violation of his right to counsel. Id. at 496-97, 114
S.Ct. 1732. But the Custis Court stated in dicta that a defendant who is
successful in state court in attacking state sentences "may then apply for
reopening of any federal sentence enhanced by the state sentences." Id. at 497,
114 S.Ct. 1732. See also Daniels v. United States, 532 U.S. 374, 382, 121 S.Ct.
1578, 149 L.Ed.2d 590 (2001) (following and amplifying Custis). The result in
Pettiford is similar to that reached by many of the other circuit courts. See, e.g.,
United States v. Doe, 239 F.3d 473, 475 (2d Cir.2001); United States v. Walker,
198 F.3d 811, 813-14 (11th Cir.1999); Turner v. United States, 183 F.3d 474,
477 (6th Cir.1999); United States v. LaValle, 175 F.3d 1106, 1108 (9th
Cir.1999); United States v. Bacon, 94 F.3d 158, 161 n. 3 (4th Cir.1996); United
States v. Cox, 83 F.3d 336, 339 (10th Cir.1996); United States v. Nichols, 30

F.3d 35, 36 (5th Cir.1994).

7

This circuit has extended the main holding inCustis to the Guidelines. See
Brackett v. United States, 270 F.3d 60, 65 (1st Cir.2001) ("Naturally, the Custis
ruling applies whether the sentence enhancement was imposed because of
ACCA or because of the Sentencing Guidelines."). And other courts have
applied the Custis dicta to the Guidelines. See, e.g., Doe, 239 F.3d at 475;
LaValle, 175 F.3d at 1108; Candelaria v. United States, 247 F.Supp.2d 125,
133-34 (D.R.I.2003); United States v. Cavallero, No. 95-59-P-H, 1999 WL
33117096, at *6 (D.Me. Nov. 17, 1999).

Other courts have held that a state conviction that has been vacated because of
the constitutional invalidity of a plea should not be counted for purposes of the
GuidelinesSee, e.g., United States v. Mobley, 96 Fed.Appx. 127, 129 (4th
Cir.2004) (vacating denial of 2255 petition and remanding for resentencing
where state conviction that was set aside after federal sentencing based upon
constitutional invalidity of guilty plea was "expunged" and should not have
been included in calculating criminal history points); LaValle, 175 F.3d at 1108
(holding that court should have granted 2255 petition where state conviction
used to enhance federal sentence was vacated based on invalidity of plea);
United States v. Lopez, No. Crim. 03-302, 2004 WL 2414843, at *2 (D.Minn.
Oct. 18, 2004) (finding it impermissible to count state conviction for federal
sentencing purposes where guilty plea was withdrawn based on invalidity of
plea, finding of guilt was withdrawn, and charge was dismissed). See also
Walker, 198 F.3d at 813-14 (affirming allowance of 2255 motion after
defendant successfully attacked prior state conviction used to enhance federal
sentence); Candelaria, 247 F.Supp.2d at 134 (granting 2255 motion after
state conviction, which served as a predicate offense for USSG 4B1.1
purposes, had been vacated).

It might be argued that the filing of the state charges render the court's vacation
of the conviction non-final. The filing of a case in Massachusetts state court "is
not equivalent to a final judgment, or to anolle prosequi or discontinuance... but
is a mere suspending of active proceedings in the case ... and leaves it within
the power of the court at any time, upon the motion of either party, to bring the
case forward and pass any lawful order or judgment therein." Commonwealth v.
Dowdican's Bail, 115 Mass. 133, 136 (1874) (filing of case after verdict of
guilty). Nevertheless, what is dispositive for purpose of the Guidelines is not
the possibility of a new trial on Mateo's state charges at some point in the
future but rather the vacation of the state conviction used to enhance Mateo's
federal sentence. Because that state conviction has been vacated, there is no
basis to presume that Mateo was "under a criminal justice sentence" as required
for enhancement under USSG 4A1.1(d).